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[2023] ZAFSHC 363
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Modupe v Master of the High Court, Free State Province Bloemfontein and Others (1602/2022) [2023] ZAFSHC 363 (21 September 2023)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
CASE NO: 1602/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
LEFU
JOSEPH MODUPE
Applicant
And
THE
MASTER OF THE HIGH COURT, FREE STATE
1
st
Respondent
PROVINCE
BLOEMFONTEIN
LESEDI
LABOPHELO TRUST
2
nd
Respondent
MOSALA
ALBERT SERUE TRUSTEE
3
rd
Respondent
LUCKYBOY
SERUE
4
th
Respondent
HEARD
ON:
17 July 2023
CORAM:
MHLAMBI, J
et
DANISO,
J
JUDGMENT
BY:
MHLAMBI,
J
DELIVERED
ON:
21
SEPTEMBER 2023
[1]
The applicant approached this court seeking the following relief on
an unopposed basis:”
1.
Condoning, extending the 180 days’
time period for the instruction (sic) of this application for the
judicial review of the
decision taken by the first respondent as per
its letter dated 14th February 2019 as more referred to (sic) the
First Respondent’s
letter marked annexure “A” in
the founding affidavit informing the Applicant that he had been
removed as one of the
trustees of Lesedi Labophelo Trust, the second
respondent;
2.
Reviewing and setting aside
alternatively declaring that the decision of the First Respondent in
removing the Applicant as Trustee
of the Second Respondent is
unlawful.
3.
Declaring that the Applicant is and
hereby reinstated as a lawful trustee of Lesedi Labophelo Trust with
immediate effect.
4.
Directing the First Respondent to
issue Letters of Authority appointing the Applicant as the Trustee of
Lesedi Labophelo Trust under
Trust Deed No. IT6[…].
5.
Granting further and/or alternative
relief, costs of suit in the event of those Respondents opposing this
application
.”
[2]
Annexure “A” referred to in the notice of motion should
read “B1”, which
is the first respondent’s letter
dated 11 February 2019 addressed to the applicant’s attorneys
informing the latter
that the applicant was removed from office in
terms of section 20(2)(e) of the Trust Property Control Act, as he
failed to comply
with the first respondent’s lawful request to
respond to allegations against him. This letter was in response to
one dated
22 January 2019 from the applicant’s attorneys who
sought reasons from the first respondent for its decision of 13 March
2018 to remove the applicant as a trustee of the second respondent.
[3]
In his explanation for the delay in filing the application within 180
days of the date of the
first respondent’s decision, the
applicant stated that he learned for the very first time of his
removal as trustee in February
2019 through his attorneys.
[1]
He never received the letter from the first respondent dated 16
November 2017, directing him to furnish reasons why he should not
be
removed from the trust. He had written to the Master in the years
2018, 2019 and 2021 requesting the reconsideration of the
decision
for his removal from office.
[2]
He struggled financially since his removal from office and could not
obtain competent legal representation.
[3]
Covid-19 had a role to play in his not bringing the application
within the prescribed time, as he was unable to travel to his
attorney’s offices for proper consultation due to travel
restrictions imposed at the time.
[4]
[4]
On 4 May 2018, he informed the first respondent that he did not
receive the letter dated 16 November
2017. The first respondent, on
receipt of such letter, should have considered his submission and
reinstated him as a trustee.
[5]
He was, in terms of section 6 of the Deeds Registry Act, the
registered owner of the trust property with his successor in title.
His removal from office deprived him of his legal right to enjoy the
title to the said property.
[6]
It was contended that his prospects of success were fairly good.
[5]
The first respondent filed a notice to abide by the decision of the
court and briefly stated that
the applicant was removed from office
for his failure to comply with a lawful request to respond to the
allegations against him;
and the matter could not be held in abeyance
indefinitely. This was contained in the letter dated 13 March 2018
and, ever since,
he has not received any formal complaint from the
beneficiaries about the incompetency of the serving trustees.
[7]
[6]
On 29 March 2021, the applicant’s attorneys informed the first
respondent that it was clear
from its letter dated 14 February 2019,
that the applicant’s removal was based solely on the fact that
he did not respond
to the first respondent’s letter of 16
November 2017; despite the applicant having furnished reasons as per
his letter dated
4 May 2018. Furthermore, the applicant was the
co-owner of the first respondent’s trust property registered at
the Deeds
Office under the deed of transfer T11[…]. The first
respondent’s decision to remove the applicant as trustee, it
was
contended, infringed his constitutional right as a co-owner of
the property assets of the Lesedi LabopheloTrust deed.
[8]
[7]
On 7 May 2018, the first respondent forwarded the applicant’s
letter of 4 May 2018 to the
first respondent’s other trustees
for their comments
[9]
which were
furnished by the third respondent in his letter dated 15 June
2018.
[10]
This letter is
attached to the applicant’s founding affidavit and marked
annexures “H1” and “H2”.
[11]
The third respondent’s reply to the applicant’s complaint
was brought to the applicant’s attention but, to date,
the
latter failed to respond to the damning allegations contained
therein.
[8]
It is common cause that both the applicant
and the third respondent were the second respondent’s
trustees
since the inception of the trust in 2002. Both are
ad
idem
that their relationship was not good from the start. The essence of
the third respondent's response to the applicant’s complaint
to
the first respondent is not far different from the allegations
contained in the third respondent’s letter of 16 November
2017
to the latter.
[12]
The third
respondent stated in his letter of 15 June 2018 that the applicant
disappeared without a trace for a number of years
and on his return
he subdivided the farm without consultation. A number of things
needed repairs on the side occupied by the applicant
who failed to
contribute financially or otherwise to the development of the trust.
The applicant did not have the interests of
the trust at heart and
failed to attend its meetings for years.
[9]
The applicant stated in his letter to the
first respondent that in 2013 he moved to the other side
of the farm
and it is evident from the contents of the said letter that, for a
considerable period, he did not have much information
about the
activities taking place on the farm.
[13]
He failed to refute the allegations against him contained in the
third respondent’s letter of 15 June 2018.
[10]
In the applicant’s heads of argument, it is
stated that a trustee may at any time be removed from
his office by
the Master if he fails to perform satisfactorily any duty imposed
upon him by the Act or comply with any lawful request
of the
Master.
[14]
The applicant
learnt of his removal as trustee by the first respondent on/or about
October 2018.
[15]
This
application was lodged without unreasonable delay as the applicant
had to exhaust the internal remedies.
[16]
The decision sought to be reviewed is an administrative act under the
Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
[17]
[11]
The main thrust of the applicant’s argument
is that the first respondent’s request to the applicant
to
comply with his request was not properly dispatched to the
applicant.
[18]
The first
respondent did not afford the applicant an opportunity to be heard
and took a decision unilaterally without considering
the
audi
alteram partem
rule.
[19]
It was contended
that the removal of the applicant was not in the interests of the
trust or its beneficiaries.
[20]
[12]
Under PAJA, proceedings for judicial review must be instituted
without unreasonable delay and not later than
180 days after the date
on which the person concerned was informed of the administrative
action.
[21]
In
Opposition
to Urban Tolling Alliance v The South African National Roads Agency
Ltd,
[22]
it was stated that: “
At
common law application of the undue delay rule required a two-stage
enquiry. First, whether there was an unreasonable delay and,
second,
if so, whether the delay should in all the circumstances be condoned.
Up to a point, I think, s 7(1) of PAJA requires the
same two-stage
approach. The difference lies, as I see it, in the legislature’s
determination of a delay exceeding 180 days
as per se unreasonable.
Before the effluxion of 180 days, the first enquiry in applying s
7(1) is still whether the delay (if any)
was unreasonable. But after
the 180-day period, the issue of unreasonableness is pre-determined
by the legislature; it is unreasonable
per se. It follows that the
court is only empowered to entertain the review application if the
interest of justice dictates an
extension in terms of s 9. Absent
such extension the court has no authority to entertain the review
application at all. Whether
or not the decision was unlawful no
longer matters. The decision has been ‘validated’ by the
delay. That of course
does not mean that, after the 180-day period,
an enquiry into the reasonableness of the applicant’s conduct
becomes entirely
irrelevant. Whether or not the delay was
unreasonable and, if so, the extent of that unreasonableness is still
a factor to be taken
into account in determining whether an extension
should be granted or not.”
[13]
In considering a delay under the provisions of PAJA, the interests of
justice are the decisive criterion.
A two-stage approach should be
followed. The first question to be answered is whether the
application was launched more than 180
days after internal remedies
were exhausted or the applicant had been informed of, had knowledge
of or ought to have had knowledge
of the administrative action under
challenge. The second question, if the first is answered in the
affirmative, is whether it is
in the interests of justice to condone
the delay.
[14]
The question of whether the interests of justice
require the grant of an extension depends on the facts
and
circumstances of each case: the party seeking it must furnish a full
and reasonable explanation for the delay which covers
the entire
duration thereof and relevant factors include the nature of the
relief sought, the extent and cause of the delay, its
effect on the
administration of justice and other litigants, the importance of the
issue to be raised in the intended proceedings
and the prospects of
success. Although a consideration of the prospects of success of the
application for review requires an examination
of its merits, this
does not encompass their determination.
[23]
[15]
This application was launched on 7 April 2022. The
applicant stated in his letter of 4 May 2018 to the first
respondent
that he knew on 2 May 2018 of his removal as trustee. Though the
applicant is shifty about the date he had knowledge
of the first
respondent’s decision, it is clear that a period of
approximately four years elapsed since the impugned decision
was
taken and the applicant came to the knowledge thereof. He failed to
give a full and reasonable explanation for the delay which
covers the
entire period. His explanation is scanty as to the work done by the
first set of lawyers he employed after he allegedly
learnt for the
first time in October 2018 of the first respondent’s
decision.
[24]
This version
contradicts his earlier versions that he had learnt of his removal
through his current attorneys in February 2019
pursuant to a letter
he had received in his post box from the first respondent in March
2018 informing him of his removal.
[16]
The relief sought is his reinstatement as the trustee of the second
respondent. Despite his awareness of
the third respondent’s
comments to his complaint which were forwarded to the first
respondent, he failed to respond thereto.
The granting of the relief
sought would have a negative effect on the administration of justice.
In these circumstances, the application
should fail.
[17]
The following order is made:
Order:
The application is
dismissed.
MHLAMBI, J
I concur
,
DANISO, J
On
behalf of applicant:
Adv.
P.S. Mphulwane
Instructed
by:
Ponoane
Attorneys
44
West Burger Street
Library
House, Suite 110
Bloemfontein
[1]
Para
6.6 of the FA.
[2]
Para 3.4 of the FA (condonation application on page 50).
[3]
Para 3.6 of the FA (condonation application).
[4]
Para 3.7 of the FA (condonation application).
[5]
Paragraphs 4.1 of the FA (condonation application).
[6]
Paragraphs 4.3 and 4.4 of the FA (condonation application).
[7]
Paragraphs 2.3 and 2.4 of the notice to abide on page 66 of the
bundle.
[8]
Paragraph 8, 10, 12 and 13 of annexure “D2” and “D3”
on page 30 and 31 of the index.
[9]
Paras 6.2/6 and 6.27 of the FA.
[10]
Annexures “H1” and “H2” to the applicants
FA.
[11]
Paras 6.28 and 6.29 of the FA.
[12]
Pages 60-62 of the Record.
[13]
Annexure
“F1” on
pages 35 and 36 of the Index.
[14]
Para2.3 of the heads of argument.
[15]
Para 3.1 of the heads of argument.
[16]
Para 3.4 of the heads of argument.
[17]
Para 3.5 of the heads of argument.
[18]
Para 3.7 of the heads of argument.
[19]
Para 3.8 of the heads of argument.
[20]
Para 3.9 of the heads of argument.
[21]
RS
21, 2023, D1704A.
[22]
[2013]
4 All SA 639
(SCA) (9 October 2013).
[23]
Erasmus:
RS 20, 2022, D1-706.
[24]
Para6.13 of the FA.